Our duty of candour animation offers guidance on the importance of being open and honest. Being open and honest with patients and those close to them is always the right thing to do and is often referred to as the duty of candour.
We have produced a short animation to help those working in health and social care to better understand the similarities and differences that exist between the professional and statutory duties of candour. The 8-minute animation also offers guidance on how they can be fulfilled effectively.
The vast majority of people who work in health and social care wish to provide the very best care they can. There is very rarely intent by staff to provide care that did not go as expected or planned.
When clinical incidents do occur, they can have a real and deep impact on peoples’ lives. Regardless of the level of harm incurred, patients and families have a right to receive a meaningful apology and explanations for what happened as soon as possible.
We know this is not easy, but being open and transparent with patients when treatment or care goes wrong is always the right thing to do – this is often referred to as the ‘Duty of Candour’.
Those working within healthcare may have heard of the terms statutory and professional duty of candour but may not be sure of the differences that exist between them. This uncertainty can result in the duty of candour not being fulfilled effectively.What is Professional Duty of Candour?
The professional duty of candour is a professional responsibility to be open and honest with patients and families when something that goes wrong with their treatment or care causes, or has the potential to cause, harm or distress. This includes saying sorry and taking action to put things right where possible. It is always the right thing to do and is not an admission of liability.
Regulators of specific healthcare professions oversee the professional duty of candour.
Failure to comply with the principles of the professional duty of candour can lead to disciplinary action being taken.
Fulfilling the professional duty of candour
As soon as you realise something has gone wrong with the care of a patient, you should speak to the patient or their family.
Where possible, speak to them face to face in a quiet, neutral space. If it is not possible to speak face to face, try and ascertain what their preferred approach would be, for example, a virtual meeting or a telephone call.
Ensure there is someone available to support them, such as a friend, relative or professional colleague.
Provide a true account of what has happened including what is known. Provide the opportunity for questions to be asked.
It is okay not to immediately know all the facts but you should be clear about what has and has not yet been established.
Saying sorry is crucial. You must apologise from the outset for the harm caused, regardless of the level of harm or fault. Saying sorry is always the right thing to do and is not an admission of liability.
Depending on the circumstances, it may be more appropriate to promptly escalate the situation to a senior member of your team or organisation and request they speak to the patient (or family) on your behalf.
Ensure the details of a single point of contact are provided. This should be someone who will be involved throughout the process and can regularly update the patient or family.
Irrespective of the level of harm incurred, you should document should document and report the incident through your organisations reporting process, and include the actions taken.
Those responsible for governance within your organisation can advise you if you are unsure whether the statutory duty of candour also applies.
What is the statutory duty of candour?
The statutory Duty of Candour is laid out in Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. It puts an overarching legal duty on health and social care providers to be open and transparent with people using services, and their families, in relation to their treatment or care. It is overseen by the Care Quality Commission or CQC.
As well as the overarching duty, regulation 20 also sets out some specific actions that providers must take when a notifiable safety incident occurs.
A ‘Notifiable safety incident’ is a specific term defined within the duty of candour regulation and should not be confused with other types of safety incidents or notifications.
A “notifiable safety incident” must meet all of the following specific criteria:
- It must have been unintended or unexpected
- It must have occurred during the provision of an activity the CQC regulates
- In the reasonable opinion of a health care professional, the notifiable safety incident could, or already appears to have, resulted in death, or severe or moderate harm to the person receiving care. This includes prolonged psychological harm
The CQC expect to see organisations act promptly as soon as a notifiable safety incident has been discovered.
It is an offence for a CQC regulated organisation to fail to comply with the duty. Failure can result in enforcement activity ranging from warning or requirement notices to criminal prosecution.
Organisations must have clear policies and procedures in place and ensure staff understand their responsibilities. The CQC will also expect senior managers to demonstrate that they have a safe culture where staff feel able to speak up and are supported to carry out the duty of candour as appropriate .
Fulfilling the statutory duty of candour
When something qualifies as a “notifiable safety incident”, the specific steps laid out in Regulation 20 must be carried out “as soon as reasonably practicable”.
This means opening conversations with the “relevant person”.
The ‘relevant person’ is defined in the regulation as either the person who was harmed or someone acting lawfully on their behalf
Someone may act on the behalf of the person who was harmed if the person:
- has died
- is under 16 and not competent to make decisions about their care or the consequences of the incident
- is over 16 and lacking mental capacity. This is in accordance with the Mental Capacity Act 2005.
Regulation 20 states that organisations must:
- Tell the relevant person, face-to-face, that a notifiable safety incident has taken place.
- Say Sorry
- Provide a true account of what happened, explaining whatever is known at that point.
- Explain to the relevant person what further enquiries or investigations will take place
- Follow up by providing this information, and the apology, in writing, and providing an update on any enquiries.
- Keep a secure written record of all meetings and communications with the relevant person.
Being open and transparent with patients and their families when treatment or care goes wrong is key to good duty of candour compliance.
Remember: Saying sorry is always the right thing to do and is not an admission of liability.
Always be compassionate towards the needs of the patient and their family.
Ensure conversations are bespoke to their needs, consider the sensitivities of the situation and always ensure that all communication is personalised and empathetic.
Following these points will help you effectively fulfil both the professional and statutory duties of candour.
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